Justia Texas Court of Criminal Appeals Opinion Summaries

Tomas Gallo sought habeas relief to challenge the death sentence he received when a jury convicted him of capital murder in 2007. Specifically, Gallo argued that the jury's answer to the special issue submitted during the punishment stage of his trial was corrupted by false testimony of the State's expert witness. The Court of Criminal Appeals denied relief on Gallo's initial post-conviction application. The attorney appointed to represent Gallo in the original habeas proceedings was Jerome Godinich, Jr. Godinich filed a subsequent application for habeas relief (the pleading at issue in this case). However, between the Court's denial of the initial writ application in 2013 and the filing of this application, Gallo was appointed a different attorney, A. Richard Ellis. Shortly after he was appointed to represent the applicant in federal court proceedings, Ellis filed a notice of appearance in this case and a motion to strike the subsequent post-conviction application that Godinich had filed, claiming that Godinich had filed it without the Gallo's permission. The convicting court forwarded the subsequent state post-conviction writ application to the Court of Criminal Appeals, who then remanded the subsequent writ application to the convicting court for additional fact development and recommended findings with respect to how it should proceed with the subsequent writ application that Godinich filed. In response, the convicting court entered the recommendation “that it [was] Attorney Godinich’s duty to continue representing [Gallo] until and unless relieved of his duties by [the Court of Criminal Appeals] or another court possessing jurisdiction.” The Court of Criminal Appeals concluded that Godinich's duty to represent Gallo did not extend beyond its denial of the state habeas application. In his affidavit on remand, Godinich opined that Gallo was "not of sufficiently sound mind to understand” Ellis’s ministrations, with the suggestion being that Gallo lacked the capacity to make a rational decision to forego Godinich’s services on his behalf in this subsequent writ application. The Court of Criminal Appeals held that Gallo had the benefit of court-appointed counsel in Ellis, albeit only for the federal habeas corpus proceedings. As long as Ellis remained Gallo's appointed federal habeas attorney, he had an obligation to continue to represent the applicant all the way through the state executive clemency process. "After conducting his federal investigation, Ellis would presumably be in a better position to gauge all of the potential claims for inclusion in a first subsequent writ application under Section 5 of Article 11.071, and thereby at least minimize the risk of additional procedural default by the failure to include reasonably available claims in the applicant’s first subsequent (-02) writ application that could bar him from raising them successfully in any subsequent subsequent (-03 or -04) writ application." The application Godinich filed was dismissed without prejudice to Gallo to later file a subsequent writ application that could be evaluated for abuse-of-write purposes under Texas law, as if it were Gallo's first subsequent writ application. View "Gallo v. Texas" on Justia Law

Applicant Billy Ray Bryant was convicted of capital murder and sentenced to life without the possibility of parole. Applicant argued that he received ineffective assistance of counsel at his trial. Janie Mussett (Janie), Applicant’s live-in girlfriend at the time of the murders, was interviewed by police once the case was reopened, and after being told that she failed a polygraph test, she signed a written statement implicating Applicant. Applicant argued that trial counsel was ineffective because of his repeated failures to object to the polygraph evidence about Janie. After review of the trial court record, the Court of Criminal Appeals concluded that Applicant had shown by a preponderance of the evidence, that his trial counsel was deficient and that the deficiency prejudiced him. As a result, Applicant was granted habeas relief. The trial court's judgment was set aside, and the case remanded for further proceedings. View "Bryant v. Texas" on Justia Law

While out walking their dogs, ten-year-old Maka and a puppy, a neighbor's pit bull got loose and charged appellant and his wife. Frightened for the dogs, appellant's wife grabbed the puppy and ran for safety. Maka was not so lucky: the pit bull grabbed ahold of its neck and shook it. Appellant managed to separate Maka and the pit bull, but not before Maka received serious injury. A neighbor from a different house heard the commotion and came to appellant's aid. The pit bull bit both men as they tried to restrain the animal. Appellant took Maka home, and returned to the scene of the attack with a rope. Appellant looped the rope around the pit bull's neck, dragged the dog to his home, tied the dog to the bumper of one of his cars, then slashed the dog's throat with a knife. He was subsequently charged with cruelty to non-livestock. During a pretrial hearing, defense counsel explained that the defense would seek to rely upon section 822.013 of the Texas Health and Safety Code as authorizing appellant’s conduct: “[W]e think that provision in the law provides a[n] absolute authorization under the facts of this case for the defendant to do what he did.” Granting the State’s motion in limine, the trial judge restricted the parties from referring to the Health and Safety Code provision. At the conclusion of testimony, defendant asked for a jury instruction based on 822.013, which was ultimately denied. Appellant was convicted, and received a year of jail time. That sentence was suspended and appellant was placed on probation. On appeal, appellant complained that the trial judge erred in refusing to submit a defensive instruction based on 822.013. The court of appeals agreed that the trial court erred and reversed. After its review, the Court of Criminal Appeals agreed with the court of appeals, and affirmed the reversal of appellant's conviction and the remand for further proceedings. View "Chase v. Texas" on Justia Law

The issue this case presented for the Court of Criminal Appeals' review centered on who bears the burden of showing that the trial judge erred in cumulating indecency-with-a-child sentences when some sexual abuse took place before the 1997 Penal Code amendments permitting cumulation of sentences for child sexual offenses. The Court concluded that appellant did not show, either at trial or on appeal, that the jury could not have found him guilty of an offense that occurred after September 1, 1997, the effective date of the cumulation statute. Instead, there was ample evidence to show that appellant began sexually abusing his victim. in 1995 (before the 1997 amendment permitting cumulation became effective) and continued to sexually abuse him until 2002 (at least five years after the 1997 amendment became effective). The Court therefore agreed with the court of appeals that the trial judge “did not err in stacking the sentences” because there was “some evidence” that the offenses occurred after September 1, 1997. View "Bonilla v. Texas" on Justia Law

Applicant Jecia Moss pled guilty to aggravated assault and was placed on deferred-adjudication community supervision for five years on October 4, 2000. Her community supervision was subsequently revoked, and she was sentenced to confinement in a state penitentiary. She argued on appeal that the trial court lacked jurisdiction to revoke her supervision and adjudicate her guilty because the motion to adjudicate was not timely filed and the capias was not timely issued. After review, the Court of Criminal Appeals held that because the capias in this case was issued after the expiration of applicant’s period of supervision, the trial court did not retain jurisdiction to proceed to adjudicate applicant guilty and sentence her. In addition, because the trial court lacked jurisdiction to proceed to adjudication, Applicant’s sentence was discharged. Therefore, the Court granted applicant the relief she sought. View "In re: Moss" on Justia Law

Applicant Eric Cathey was convicted of capital murder in 1997 for the kidnapping and shooting death of Cristina Castillo. Applicant received a death sentence. The Court of Criminal Appeals affirmed his conviction and sentence in 1999, and denied relief on his first application for habeas relief in 2003. The day before his scheduled execution, applicant filed another writ, alleging for the first time that he was mentally retarded and therefore exempt from the death penalty. The Court stayed the execution and issued an order finding that applicant's claim satisfied the requirements of Article 11.071 section 5. The case was remanded to the trial court for a hearing on this new claim. On December 31, 2012, almost two years after the hearing and on the last day of her term of office, the trial judge signed applicant’s proposed findings of fact and conclusions of law. The Court of Criminal Appeals held that applicant did not establish by a preponderance of the evidence, that he was mentally retarded, and therefore he was not exempt from the death penalty. The Court concluded the record did not support the habeas judge’s factual findings or legal conclusions: "[a]lthough we agree that factfinders may 'consider' the concept of the 'Flynn Effect' in assessing the validity of a WAIS or WAIS-R IQ test score, they may consider that effect only in the way that they consider an IQ examiner’s assessment of malingering, depression, lack of concentration, and so forth. It is a generalized consideration that could detract from the over-all validity of the score obtained. The preferred solution to an outdated IQ score is not to start subtracting from that score, it is to retest with a more recently normed IQ test. . . . the trial judge’s finding that [applicant's] 1997 IQ test score was reliable after subtracting ten points was contradicted by the evidence and led to further . . .errors, including an error in the ultimate factual finding that applicant is intellectually disabled under 'Atkins.'" View "In re: Cathey" on Justia Law

A jury found appellant Donald Aekins guilty of three counts of sexual assault. The court of appeals held that his convictions for both contacting and penetrating the adult victim’s sexual organ with his mouth violated his right against multiple punishments for the same offense because the contact and penetration were based on the same act. The State petitioned the Court of Criminal Appeals for discretionary review to clarify: (1) when a single exposure or contact offense is "incident to and subsumed by" a penetration offense, the offenses are the "same" for double-jeopardy purposes; (2) that the Texas Legislature has not manifested its intent to allow multiple punishments for those "same" offenses; so (3) multiple convictions for those "same" offenses violate double-jeopardy principles. The Court concluded that the court of appeals properly vacated the conviction for the "contact" sexual assault count, and affirmed that court's judgment. View "Aekins v. Texas" on Justia Law

Appellee, Kimberly Story, was charged with forgery after police found forged checks in her car. The trial court, however, granted her motion to suppress the checks that were recovered from her vehicle, which was searched during the arrest of Appellee and her boyfriend, James Kuykendall, for unrelated offenses. The trial court determined that Appellee was arrested without probable cause and that the search of her vehicle and seizure of the evidence found there were the result of a trespass by the officer. The court of appeals affirmed, finding no abuse of discretion in the court’s conclusion that Appellee’s arrest was unlawful and the evidence inadmissible. Upon review, the Court of Criminal Appeals agreed with the court of appeals that the trial court did not abuse its discretion and affirmed its judgment. View "Texas v. Story" on Justia Law

After Michael Grado pleaded guilty to possession of 400 grams or more of amphetamine, he was sentenced him to ten years’ confinement. The punishment was suspended and Grado received community supervision for a ten-year period and a $10,000 fine. Grado later pleaded true to the violations the State alleged in its motion to revoke his community supervision. There was no plea bargain between the parties on punishment after revocation. Before the admission of evidence, findings on the violations, and sentencing, the parties informed the judge of their belief on the correct punishment range applicable to Grado’s conviction. The community supervision was revoked, and the judge sentenced Grado to ten years’ confinement, believing that it was the statutory minimum for Grado’s offense when in fact it was five. Grado did not object. Is the right to be sentenced by a judge who considers the entire range of punishment subject to procedural default? Concluding that it is a waiver-only right, the Court of Criminal Appeals held that it is not. View "Grado v. Texas" on Justia Law

Appellant Farrain Comeaux was charged with burglary of a habitation in an indictment that included eight enhancement paragraphs. During voir dire, potential juror number 23 (PJ 23) expressed some concern about his ability to be fair because he had been the victim of a prior burglary and had strong feelings about the subject. After both sides spoke with the venire panel, the trial judge requested that PJ 23 stay for additional questioning. In response to the prosecutor’s asking if he already thought Comeaux was guilty, PJ 23 stated, "I just don’t feel I can be fair." Appellant moved to strike PJ 23 for cause. Following a dialogue, appellant used all ten of his peremptory strikes, including a peremptory strike on PJ 23. He then asked for an additional strike, which the trial judge denied. Appellant stated on the record that he would have used the additional strike on potential juror number 27 (PJ 27). Although appellant did not use a peremptory strike on PJ 27, he did use a peremptory strike on PJ 34, who was not within the "strike zone," the group of potential jurors who could actually sit on the jury. PJ 27, however, did serve on the jury, which convicted appellant of burglary, found the enhancement paragraphs true, and sentenced him to 50 years in prison. On appeal, appellant claimed that the trial judge erred by denying his challenge for cause on PJ 23. The Court of Criminal Appeals found that this was a case of first impression in Texas: because the court of appeals found that appellant failed to preserve error on the challenge for cause because, although he exhausted his peremptory strikes and identified an objectionable juror, he used a peremptory strike on a potential juror outside of the “strike zone,” and thus suffered no detriment. The Court of Criminal Appeals reviewed whether appellant indeed preserved his claim of an erroneous denial of a challenge for cause for appellate review. "The issue, however, is one of harm, not preservation." The Court held that appellant failed to show harm because he could have, but chose not to, strike the objectionable juror. View "Comeaux v. Texas" on Justia Law